R v Cole

Case [2016] QCA 307 22 November 2016

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Cole [2016] QCA 307

PARTIES:

R
v
COLE, John Robert
(applicant)

FILE NO/S:

CA No 35 of 2016
DC No 161 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Rockhampton – Date of Sentence: 3 December 2015

DELIVERED ON:

22 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

15 June 2016

JUDGES:

Holmes CJ and Philippides JA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal is granted.

2.   The appeal is allowed.

3.   The sentence imposed on the applicant on 3 December 2015 is set aside.

4.   For the offence of armed robbery committed on 8 January 2015, the applicant is to be imprisoned for a term of four years and six months, cumulative on the sentence imposed on the applicant on 15 August 2012.

5.   The applicant’s parole eligibility date is 20 February 2018.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of armed robbery – where the applicant was sentenced to nine years’ imprisonment – where the applicant has a previous conviction for robbery for which he was sentenced on 15 August 2012 to four years and six months’ imprisonment, with a declaration that a period of 178 days in pre-sentence custody be declared as time already served – where the sentencing Judge ordered that the sentence of nine years’ imprisonment be served concurrently with the August 2012 sentence – where s 156A of the Penalties and Sentences Act 1992 (Qld) required that the sentence imposed be cumulative on the August 2012 sentence – whether the sentence was manifestly excessive in all the circumstances – application of totality principle

Penalties and Sentences Act 1992 (Qld), s 156A, s 159A

R v Abraham[2011] QCA 270, considered
R v Brown[2000] QCA 402, considered
R v Coglan[2004] QCA 486, considered
R v Coleman[2015] QCA 176, considered
R v Dawson[2004] QCA 438, considered
R v Fulton, unreported, District Court of Queensland, 22 July 1997, cited
R v Gwilliams and Fish[2010] QCA 286, considered
R v Irving[2001] QCA 472, considered
R v Jamieson[2007] QCA 20, considered
R v Kapitano[2002] QCA 496, considered
R v Kengike[2013] QCA 40, considered
R v Lemmo[2014] QCA 25, considered
R v Lotoaniui (2013) 228 A Crim R 446; [2013] QCA 71, considered
R v Richardson[2010] QCA 216, considered
R v Richardson(No 2)[2010] QCA 278, considered
R v Woods[2001] QCA 474, considered

COUNSEL:

The applicant appeared on his own behalf
G J Cummings for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cole

Details

AGLC: R v Cole [2016] QCA 307
Case: [2016] QCA 307
Decision Date: 22 November 2016

CaseChat Overview and Summary

In the case of R v Cole, the applicant appealed against his sentence for armed robbery, arguing that it was manifestly excessive. The applicant had been convicted of armed robbery and was sentenced to nine years' imprisonment, to be served concurrently with a previous sentence for robbery. The applicant's previous conviction, dating back to 15 August 2012, involved a four-year-and-six-month imprisonment term, with 178 days of pre-sentence custody considered as time already served. The sentencing judge ordered the recent nine-year sentence to run concurrently with the 2012 sentence, despite statutory requirements for cumulative sentencing.

The primary legal issue for the court was whether the sentence was manifestly excessive or inadequate in all the circumstances, particularly considering the principle of totality, which mandates that the total period of imprisonment, including any pre-sentence custody, should not be exceeded. The court was tasked with evaluating the appropriate length of the sentence and determining whether the parole eligibility date should be adjusted.

In addressing these issues, the court considered the principle of totality and the timing of the current offence in relation to the applicant's release on parole from the 2012 sentence. The court found that a term of imprisonment of four years and six months, cumulative on the 2012 sentence, was appropriate. To reflect the short interval between the applicant's release on parole and the commission of the current offence, the court set the parole eligibility date at 18 months into the new sentence, aligning with the case of Richardson. The court concluded that the original nine-year sentence was manifestly excessive and granted the appeal, setting aside the original sentence and imposing a new term of imprisonment with a specified parole eligibility date.

The final orders of the court were to grant the application for leave to appeal, allow the appeal, set aside the original sentence, impose a new sentence of four years and six months, cumulative on the 2012 sentence, and set the parole eligibility date at 20 February 2018.

Orders

Orders of the court

1. The application for leave to appeal is granted.

2. The appeal is allowed.

3. The sentence imposed on the applicant on 3 December 2015 is set aside.

4. For the offence of armed robbery committed on 8 January 2015, the applicant is to be imprisoned for a term of four years and six months, cumulative on the sentence imposed on the applicant on 15 August 2012.

5. The applicant’s parole eligibility date is 20 February 2018.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Weighing these things up, it seems to me that an appropriate sentence to impose for the current offence is a term of imprisonment of four and a half years, cumulative on the sentence imposed in August 2012. I would, however, fix the parole eligibility date 18 months into that term, to some extent consistent with Richardson, and to reflect the fact that the current offence occurred very shortly after the applicant was released on parole.Conclusion I would make the following orders:-1.The application for leave to appeal is granted;2.The appeal is allowed;3.The sentence imposed on the applicant on 3 December 2015 is set aside;4.For the offence of armed robbery committed on 8 January 2015, the applicant is to be imprisoned for a term of four years and six months, cumulative on the sentence imposed on the applicant on 15 August 2012;5.The applicant’s parole eligibility date is 20 February 2018.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Cole [2016] QCA 307

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 20 of 20 shown

Nguyen v The Queen
[2016] HCA 17 Para 5

…pp 62-65; and note the approach of Connolly J in the passage cited from Jenkyns , in Mills at p 65; and see, for example Nguyen v The Queen [2016] HCA 17 at [37], [64]. [41]See Wong v The Queen (2001) 207 CLR 584 at p 591 [7]. [42](2010) 242 CLR 520 at pp 535-536 [48]-[49]. [43] Hili at p 537 [54]. [44]Compare H…
R v Coleman
[2015] QCA 176 Para 25

…support of the sentence, the respondent relied on R v Brown [26]; R v Coleman [27]; and R v Kengike [28]. [25][2001] QCA 472. [26][2000] QCA 402. [27][2015] QCA 176. [28][2013] QCA 40. Was the sentence in accordance with s 156A of the PSA?…
R v Lemmo
[2014] QCA 25 Para 24

…16][2007] QCA 20. [17][2001] QCA 474. [18][2011] QCA 270. [19][2004] QCA 438. [20]District Court of Queensland, 22 July 1997. [21][2002] QCA 496. [22][2014] QCA 25. [23][2013] QCA 71. [24][2010] QCA 286.…
R v Lotoaniui
[2013] QCA 71 Para 24

…17][2001] QCA 474. [18][2011] QCA 270. [19][2004] QCA 438. [20]District Court of Queensland, 22 July 1997. [21][2002] QCA 496. [22][2014] QCA 25. [23][2013] QCA 71. [24][2010] QCA 286.…
R v Kengike
[2013] QCA 40 Para 25

…nce, the respondent relied on R v Brown [26]; R v Coleman [27]; and R v Kengike [28]. [25][2001] QCA 472. [26][2000] QCA 402. [27][2015] QCA 176. [28][2013] QCA 40. Was the sentence in accordance with s 156A of the PSA?…
R v Abraham
[2011] QCA 270 Para 24

…v Lemmo [22]; R v Lotoaniui [23] and R v Gwilliams and Fish [24]. [14][2010] QCA 216. [15][2004] QCA 486. [16][2007] QCA 20. [17][2001] QCA 474. [18][2011] QCA 270. [19][2004] QCA 438. [20]District Court of Queensland, 22 July 1997. [21][2002] QCA 496. [22][2014] QCA 25. [23][2013] QCA 71. [24][2010] QCA 286.…
Hili v The Queen
[2010] HCA 45 Para 5

…at p 65; and see, for example Nguyen v The Queen [2016] HCA 17 at [37], [64]. [41]See Wong v The Queen (2001) 207 CLR 584 at p 591 [7]. [42](2010) 242 CLR 520 at pp 535-536 [48]-[49]. [43] Hili at p 537 [54]. [44]Compare Hili at p 536 [50].…
R v Gwilliams and Fish
[2010] QCA 286 Para 24

…[18][2011] QCA 270. [19][2004] QCA 438. [20]District Court of Queensland, 22 July 1997. [21][2002] QCA 496. [22][2014] QCA 25. [23][2013] QCA 71. [24][2010] QCA 286.…
R v Richardson (No 2)
[2010] QCA 278 Para 9

…tory, where there was the added aggravation of bail and parole breaches and the positive factor of an early plea”. [37] R v Richardson (No 2) [2010] QCA 278. [38][2010] QCA 216 at [54].…
R v Richardson
[2010] QCA 216 Para 24

…[17]; R v Abraham [18]; R v Dawson [19]; R v Fulton [20]; R v Kapitano [21]; R v Lemmo [22]; R v Lotoaniui [23] and R v Gwilliams and Fish [24]. [14][2010] QCA 216. [15][2004] QCA 486. [16][2007] QCA 20. [17][2001] QCA 474. [18][2011] QCA 270. [19][2004] QCA 438. [20]District Court of Queensland, 22 July 1997. […
R v Verburgt
[2009] QCA 33 Para 4

…the sentence imposed was not according to law, it is necessary for this Court to re-exercise the sentencing discretion[39]. [39]Compare R v Verburgt [2009] QCA 33 at pp 3-4.…
R v Jamieson
[2007] QCA 20 Para 24

…; R v Fulton [20]; R v Kapitano [21]; R v Lemmo [22]; R v Lotoaniui [23] and R v Gwilliams and Fish [24]. [14][2010] QCA 216. [15][2004] QCA 486. [16][2007] QCA 20. [17][2001] QCA 474. [18][2011] QCA 270. [19][2004] QCA 438. [20]District Court of Queensland, 22 July 1997. [21][2002] QCA 496. [22][2014] QCA 25. […
R v Coglan
[2004] QCA 486 Para 24

…18]; R v Dawson [19]; R v Fulton [20]; R v Kapitano [21]; R v Lemmo [22]; R v Lotoaniui [23] and R v Gwilliams and Fish [24]. [14][2010] QCA 216. [15][2004] QCA 486. [16][2007] QCA 20. [17][2001] QCA 474. [18][2011] QCA 270. [19][2004] QCA 438. [20]District Court of Queensland, 22 July 1997. [21][2002] QCA 496. […
R v Dawson
[2004] QCA 438 Para 24

…otoaniui [23] and R v Gwilliams and Fish [24]. [14][2010] QCA 216. [15][2004] QCA 486. [16][2007] QCA 20. [17][2001] QCA 474. [18][2011] QCA 270. [19][2004] QCA 438. [20]District Court of Queensland, 22 July 1997. [21][2002] QCA 496. [22][2014] QCA 25. [23][2013] QCA 71. [24][2010] QCA 286.…
R v Kapitano
[2002] QCA 496 Para 24

…15][2004] QCA 486. [16][2007] QCA 20. [17][2001] QCA 474. [18][2011] QCA 270. [19][2004] QCA 438. [20]District Court of Queensland, 22 July 1997. [21][2002] QCA 496. [22][2014] QCA 25. [23][2013] QCA 71. [24][2010] QCA 286.…
Wong v The Queen
[2001] HCA 64 Para 5

…assage cited from Jenkyns , in Mills at p 65; and see, for example Nguyen v The Queen [2016] HCA 17 at [37], [64]. [41]See Wong v The Queen (2001) 207 CLR 584 at p 591 [7]. [42](2010) 242 CLR 520 at pp 535-536 [48]-[49]. [43] Hili at p 537 [54]. [44]Compare Hili at p 536 [50].…
R v Woods
[2001] QCA 474 Para 24

…R v Kapitano [21]; R v Lemmo [22]; R v Lotoaniui [23] and R v Gwilliams and Fish [24]. [14][2010] QCA 216. [15][2004] QCA 486. [16][2007] QCA 20. [17][2001] QCA 474. [18][2011] QCA 270. [19][2004] QCA 438. [20]District Court of Queensland, 22 July 1997. [21][2002] QCA 496. [22][2014] QCA 25. [23][2013] QCA 71. [2…
R v Irving
[2001] QCA 472 Para 25

…with R v Irving [25]. Subsequently, in support of the sentence, the respondent relied on R v Brown [26]; R v Coleman [27]; and R v Kengike [28]. [25][2001] QCA 472. [26][2000] QCA 402. [27][2015] QCA 176. [28][2013] QCA 40. Was the sentence in accordance with s 156A of the PSA?…
R v Brown
[2000] QCA 402 Para 25

…]. Subsequently, in support of the sentence, the respondent relied on R v Brown [26]; R v Coleman [27]; and R v Kengike [28]. [25][2001] QCA 472. [26][2000] QCA 402. [27][2015] QCA 176. [28][2013] QCA 40. Was the sentence in accordance with s 156A of the PSA?…
Mill v The Queen
[1988] HCA 70 Para 5

…y reflect the application of those principles, and it is therefore unnecessary to make specific reference to them. [40]See Mill v The Queen (1988) 166 CLR 59 at pp 62-65; and note the approach of Connolly J in the passage cited from Jenkyns , in Mills at p 65; and see, for example Nguyen v The Queen [2016] HCA 17 at…

Legislation cited in this decision · 5

Penalties and Sentences Act 1992 (Qld)
156A 2 mentions (from Para 14)
Corrective Services Act 1988 (Qld)
1 mention (from Para 3)
Corrective Services Act 2000 (Qld)
1 mention (from Para 3)
Corrective Services Act 2006 (Qld)
1 mention (from Para 27)
Drug Court Act 2000 (Qld)
1 mention (from Para 16)

CITATION:	R v Cole [2016] QCA 307
PARTIES:	R v COLE, John Robert (applicant)
FILE NO/S:	CA No 35 of 2016 DC No 161 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Rockhampton – Date of Sentence: 3 December 2015
DELIVERED ON:	22 November 2016
DELIVERED AT:	Brisbane
HEARING DATE:	15 June 2016
JUDGES:	Holmes CJ and Philippides JA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed on the applicant on 3 December 2015 is set aside. 4. For the offence of armed robbery committed on 8 January 2015, the applicant is to be imprisoned for a term of four years and six months, cumulative on the sentence imposed on the applicant on 15 August 2012. 5. The applicant’s parole eligibility date is 20 February 2018.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted of armed robbery – where the applicant was sentenced to nine years’ imprisonment – where the applicant has a previous conviction for robbery for which he was sentenced on 15 August 2012 to four years and six months’ imprisonment, with a declaration that a period of 178 days in pre-sentence custody be declared as time already served – where the sentencing Judge ordered that the sentence of nine years’ imprisonment be served concurrently with the August 2012 sentence – where s 156A of the Penalties and Sentences Act 1992 (Qld) required that the sentence imposed be cumulative on the August 2012 sentence – whether the sentence was manifestly excessive in all the circumstances – application of totality principle Penalties and Sentences Act 1992 (Qld), s 156A, s 159A R v Abraham[2011] QCA 270, considered R v Brown[2000] QCA 402, considered R v Coglan[2004] QCA 486, considered R v Coleman[2015] QCA 176, considered R v Dawson[2004] QCA 438, considered R v Fulton, unreported, District Court of Queensland, 22 July 1997, cited R v Gwilliams and Fish[2010] QCA 286, considered R v Irving[2001] QCA 472, considered R v Jamieson[2007] QCA 20, considered R v Kapitano[2002] QCA 496, considered R v Kengike[2013] QCA 40, considered R v Lemmo[2014] QCA 25, considered R v Lotoaniui (2013) 228 A Crim R 446; [2013] QCA 71, considered R v Richardson[2010] QCA 216, considered R v Richardson(No 2)[2010] QCA 278, considered R v Woods[2001] QCA 474, considered
COUNSEL:	The applicant appeared on his own behalf G J Cummings for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent